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PRINCIPAL AND SURETY. Military bounty lands, statute of limitations, see

Limitation of Actions, 1. See, also, Bail: Bonds.

title by adverse possession, see Adverse PosLiability of sureties on guardian's bond, see

session, 9. Guardian and Ward, 2.

Grants to railroads. Scope of contract.

1. Act Tex. Aug. 16, 1876, grants to railroad 1. A financial agent, appointed to refund a companies theretofore 'cbartered, or thereafter county's indebtedness, was prohibited from in- organized under the general law, 'on the complecluding therein any of the bonds of such county tion of a section of 10 miles or more of road, 16 numbered 161 to 200, without an actual order of sections of land for each mile so completed and the county court. By a subsequent order of put in running order: “provided, that the act court, he was cuthorized to negotiate for the ex

shall not be construed to renew ur continue any change of renewal bonds aggregating $120,000, in right to companies which have failed or may fail denominations of $600, $500, and $100. The agent in their charters." Held, that the proviso did

to complete their roads within the time specified gave a bond, with sureties, in which it was ex. pressly stipulated that in 'no

event should there not exclude from the benefit of the act a company be delivered to bim at any one time more than 25

which had previously acquired no right to pubof such renewal bonds of a face value of $600

lic lands under its charter, and which had failed each, or an equivalent amount of $500 or $100 of the act to complete its road in the time the

after the passage, and before the taking effect, bonds. The county court afterwards issued, without further order, other bonds in excess of charter required. -Galveston, H. & S. A. Ry. Co. the $1:20,000 previously issued, the last lot being v. State, (Tex. Sup.) 17 S. W. 67. numbered 164 to 225, each for $500, and two 2. Act Tex. Aug. 16, 1876, grants to railroad others for $100 each. 'These bonds were delivered companies theretofore chartered, or thereafter to the agent, who converted them to his own use. organized under the general law, on the compleHeli, in an action on the agent's bond, that the tion of a section of 10 miles or more of road, 16 sureties were not liable on any issue in excess of sections of land for each mile, so completed and the original $120,000.-Sullivan County v. Hat. put in running order. Held, that the grant atfield, (Mo. Sup.) 17 S. W. 945.

taches only to continuous sections of the main Liability of sureties.

line, and land certificates based on the length of

switches and side tracks are voidable, notwith2. l'ho least amount of which a principal was in standing the decision of the executive department default after the date of giving a new bond wbich to the contrary.--Galveston, H. & S. A. Ry. Co. did not release the suretics on the old bond, is

v. State, (Tex. Sup.) 17 S. W. 67. the greatest amount for w ich the sureties of the prior bond can be held liable. - Loyd v. City guish between lands granted for mileage of the

3. The fact that the certificates did not distinof Ft. Worth, (Tex. Sup.) 17 S. W. 617.

main line and of the side tracks did not invali. Discharge and release of surety.

date the entire grant.-Galveston, H. & S. A. 3. The giving of a new bond by the city ag. Ry. Co. v. State, (Tex. Sup.) 17 S.' w. 67. sessor, pursuant to Rev. St. Tex. art. 366, does

Forfeiture. not release the sureties on the bond alrcady existing from liability for defaults of the principal to

4. A provision in the charter of a railroad that date. - Joyli v. City of Ft. Worth, (Tex. company that, if its road be not completed in a Sup.) 17 S. W. *12.

certain time, the charter shall be forfeited,” is pot self-executing; and, unless the forfeiture has

been judicially declared in proceedings for that Privilege.

purpose, lands granted to the company cannot be Of witness, incriminating questions, see Witness, recovered by the state on the ground that, prior 12

to the grant, the company had failed to complete

its road within the stated time. -Galveston, H. Privileged Communication.

& S. A. Ry. Co. v. State, (Tex. Sup.) 17 S. W.67. See Witness, 8, 9.

Titles derived from states.

5. Const. Tex. 1876, art. 14, $ 4, providing

that "no certificate for land shall be sold at the Probate Courts.

land office except to actual settlers upon the See Courts, 7.

same, and in lots not to exceed 160 acres;" and

section 2, providing that all genuine land cerProcess.

tificates heretofore or hereafter issued shall be See Writs.

located only upon unappropriated public domain,

and not upon any land titled or equitably owned Promissory Notes.

under color of title from the state,-apply ex

clusively to the sale of land certiticates at the See Negotiable Instruments.

land-office, and have no reference to sales con

templated by Act Tex. July 14, 1879, as amend. Proof of Handwriting.

ed by Act March 11, 1881, providing for the sale

of all vacant and unappropriated lands, in cer. See Evidence, 41.

tain counties, in tracts of 640 acres each.-San

born v. Gunter, (Tex. Sup.) 17 S. W. 117. Proximate Cause.

6. Laws Tex. 1879, as amended by act of

March 11, 1881, relating to public lands, provide See Negligence, 4-6.

that “these lands shall be sold in tracts of 610

acres each, unless precluded by previous sur. Publication.

veys, etc.' Held, that in an application to pur.

chase land in one body, to be surveyed in 640 Of notice of tax-sale, see Taxation, 16-21.

acre tracts, it is not essential to describe the Service of process by, see Writs.

land "section by section,” since the act simply

prescribes the amounts to be purchased, and does Public Improvements.

not prescribe or affect the form of application.

-Jumbo Cattle Co. v. Bacon, (Tex. Sup.) 17 S. W. See Municipal Corporations, 27-40.

136.

7. Laws Tex. July 14, 1879, as amended by

Laws 1881, p. 25, provided for the sale of state PUBLIC LANDS.

lands at 50 cents per acre to any responsible per

son who would make application therefor and Cancellation of fraudulent sales, limitation, see survey the same. Laws Tex. Jan. 22, 1883, reLimitution of Actions, 2.

pealed the foregoing acts. Held, that upon :

proper application for the purchase of state lands, shall issue for the lands surveyed and paid for.
made December 1, 1882, a survey made January Held, that an application to the proper surveyor,
19 and 20, 1883, payment of the surveyor's fees November 25, 1882, for the survey of land open to
and the fees for recording in the general land- pre-emption, the filing of the field.notes in the
office, and a tender of the purchase price to the general land-office, January 30, 1883, and the pay-
state treasurer, the

applicant acquired a vested ment, March 27th following, to the state treasurer
right in the lands, which the legislature cannot of the ful, purchase price, confirms the right of
divest.-Jumbo Cattle Co. v. Bacon, (Tex. Sup.) purchase, and it could not be defeated by the
17 S. W. 136.

provisions of the act of March 31, 1883, validat-
8. The treasurer could not defeat that right | ing patents and surveys by virtue of headright
by refusing to accept the morey.-Jumbo Cattle and bounty warrants issued under special laws
Co. v. Bacon, (Tex. Sup.) 17 S. W. 136.

enacted after March 31, 1870, and prior to April
9. The fact that a witness was employed by 17, 1876. - White v. Martin, 17 8. W. 727, 66 Tex.
another to locate land under a certificate of grant 840.
which be claimed to own is not sufficient to au- 14. 8., a soldier in the Texas revolution, and
thorize the submission of the question of owner- as such entitled to a headright of a third of a
ship of the certificate to the jury, when the pat- league of land under Act Dec. 14, 1837, received
ent was issued to the original owner, as the mere a certificate in 1841, and in 1849 conveyed the
possession of a muniment of title is not evidence certificate and the land on which it had been
of title in the possessor.-Chamberlain v. Pybas, located by deed with covenants of warranty
(Tex. Sup.) 17 S. W. 50.

against himself and his heirs. The certificate for
10. Laws Tex. May, 1873, § 8, reserves the the headright, which had never been established
Memphis and El Paso reservation, from the by suit, was invalid. Act April 26, 1873, direct-
twenty-third meridian west to the Rio Grande ing, for the relief of S., that another certificato
river, from pre-emption and location, for the be issued to bim in lieu of the original, was in
benefit of the Texas Pacific Railway Company, conflict with Const. 1866, art. 10, $ 6, prohibiting
to a distance of 40 miles on either side of the a grant of land to any one by the legislature.
center of such reserve. In December, 1872, de. Held, that under Gen. Laws 1883, p. 33, declar.
femuunts' lessors made application for the 'sur. ing that all surveys and patents by virtue of
vey of 40 alternate certificates, and on May 10, headright and bounty warrants, to which there
1873, applied for a survey of 200 additional cer was no valid legal objection other than that the
tificates. In July, 1873, they made the 240 al. special acts authorizing the certificates under
ternate surveys under their two applications, and which they were located were in coniict with
filed them in the general land-office. These sur- the constitution then in force, were validated
veys did not cover the land in question. Their and confirmed to “soldiers and heirs and actual
application, however, covered 420 sections of settlers of Texas and their vendees," it was the
land more than were necessary to satisfy their intention to revive the original right, rather
surveys, and included the land in controversy. than to create a new one, and tuerefore the bene-
Afterwards, and without any additional fling, fits of the act accrued to those to whom S. grant-
they surveyed the lands in suit, which lie with: ed the original certificate, rather than to his heirs.
in the 80 mile Texas & Pacific Railway reserve 17 S. W. 238, reversed.—Ralston v. Skerrett, (Tex.
under other and different certificates than the Sup.) 17 S. W. 843.
240 alternate certificates on file. Held, that the
application of the new certificates could only take Transfer of certificate.
effect as new locations, and the latter, being made 15. Where plaintiffs claim land under a trang.
subsequent to the above act, are void. -Jumbo fer of the certificate prior to the issue of the pat-
Cattle Co. v. Bacon, (Tex. Sup.) 17 8. W. 136. ent, and the defendants claim through a regular

chain of title from the patentee, and, there be.
Headrights.

ing some controversy as to the transfer, the court
11. A special act of the legislature, directing charges that title to the certificate would pass,
a headright certificate to issue in lieu of a void as between its true owner and the claimani, bý
certificate, was but in effect a direction to issue a written transfer, or by verbal sale, or by an
land certificate as a donation, which under Const. adverse bolding for two years, if the charge as
Tex. art. 10, $ 6, then in force, the legislature to title by adverse possession is not correct, the
had no power to do.-White v. Martin, 17 8. W. plaintiffs cannot complain, for in so far it is in
727, 66 Tex. 340.

their favor.--Sickles v. White, 17 S. W. 543, 66
12. In an action to recover a section of land Tex. 178.
through a patent which issued in August, 1883,
on a location made in 1874 on a certificate issued

Bar of unsatisfied certificate.
under Sp. Laws Tex. 1873, p. 307, directing tbe 16. Const. art. 14, § 2, provides that all unsat-
commissioner of the general land-office to issue isfied land certificates in existence at the time of
to one J., “640 acres headright in lieu of No. 162, the adoption of the constitution shall be barred
issued in Shelby county, without the conditional, after five years therefrom. Rev. St. arts. 3887,
it appeared that the certificate referred to in the 3888, in proper cases, authorize the issuance of
act bad been issued without the conditional cer- certified copies of certificates and certificates of
titicate required by law by the Shulby county unlocated balances. Held, that the issuing of
board of land commissioners on May 27, 1840, who certified copies and of certificates of unlocated
at that time had no authority to act.

The cer-

balances does not give new life to the original
tificate was rejected by the board of claims, certificate, and the constitutional bar is not
April 5, 1858, and there was nothing to show that affected by their dates. —New York & T. Land
it was ever recommended by any board appointed Co. v. Thomson, (Tex. Sup.) 17 8. W. 920.
to detect fraudulent land certificates, nor that it
was established by suit. Held, that certificate

Forfeiture of grant.
No. 162 was void, and could not be niade the foun- 17. Act Ky. 1808, incorporating the “Lewis
dation of a right. - White v. Martin, 17 S. W.727, County Academy, "authorized the trustees to pat-
66 Tex. 340.

ent land for the benetit of the academy. In 1825
13. Laws Tex. March 11, 1831, amendatory of the legislature authorized the trustees to sell for
Laws 1879, relating to public lands, provides that the benefit of the academy the land which they
any person, firm, or corporation may purchase had patented. Held that, the land not having
any of the unappropriated lands by causing and been sold, and the academy being dissolved,
paying for a survey of the land desired by the and there being no trustees, the legislature had
authori ed surveyor of the county or district power, 26 years later, to repeal the act of 1825,
where it is situated, and it shall be the right of and grant the land for another purpose; since,
such intending purchaser, who has had the same the trust being for a special purpose, and that
surveyed, to pay into the state treasury the pur purpose having failed, the land reverted to the
chase money at the rate of 50 cents per acre, and, grantor without any direct proceeding to establish
upon presentation to the commissioners of the gen- the forfeiture.-Kennedy v. McElroy, (Ky.) 17 8.
eral land-office of the treasurer's receipt, a patent I w. 202.

act.

Public Use.

8. Where a charter is amended so as to chango

the starting point of a railroad, the change will
See Eminent Domain, 1, 2.

not be effected unless such amendment is regis.
tered in the county where the charter was orig.

inally registered. -Anderson v. Middle & East
QUIETING TITLE.

Tennessee Cent. R. Co., (Tenn.) 17 8. W. 803.
Decree.

Failure to fence.
In an action to quiet title, a judgment de- 4. There being no common-law obligation for
claring the title in plaiatiffs on the payment of a a railroad to build a fence along its line, but it
specified sum of money into court for defendant's being obliged by statute to build half of the fence
benefit is not rendered irregular because it fails after notice, as in the case of persons owning ad.
to provide for an execution in defendant's favor joining lands, damages cannot be recovered
in case of the non-payment of the money by against a railroad for failure to construct a fence,
plaintiffs, since, on plaintiffs' default, defendant though it has refused to do so after notice, where
may apply to the court for all orders necessary plaintiff does not aver a construction of, or offer
for his protection.-Smith v. Miller, 17 8. W.

to construct, his half of the fence.-Hall v. Trus-
899, 66 Tex. 74.

tees of Cincinnati Southern Ry., (Ky.) 17 S. W.

207.
QUI TAM AND PENAL AC Municipal aid.
TIONS.

5. Gen. St. Mo. 1865, pp. 338, 339, $$ 17, 21, pro-

vide that counties, with the assent of two-thirds
Action to recover penalty for Sunday labor, see to the stock of railroad companies, whether in.

of the voters, shall have the right to subscribe
Sunday, 6-9.

corporated under the general law or some special
Indictment for penalty.

It is also made the duty of the county court
1. Though a statute provides that a penalty the bonds issued therefor. The bonds in question

to levy a special tax to pay the subscription or
prescribed thereby shall be recovered only in u
suit" by the prosecuting attorney in the name ing the M. & M. R. Co., and authorizing the levy

were issued under Act Feb. 20, 1865, incorporat-
of the people, the court has jurisdiction to rep. of a “tax to pay the same not exceeding one-twen-
der judgment for the penalty, where it is sought tieth of one per cent." Held, that such bonds
to be recovered by indictment presented under could be paid only out of the special tax provid-
the sanction of the grand jury, if the indictmented for them, and not out of the general revenues
is, in substance, equivalent to a complaint, and of the county. Sherwoon, P. J., dissenting. 11
is signed by the prosecuting attorney, since in S. W. 747, afirmed. — State v. 'Trammel," (Mo.
such case the proceeding may be treated as a
suit. — St. Louis, I. M. & 8. Ry. Co. v. State,

Sup.) 17 S. W. 503.
(Ark.) 17 8. W. 806.

Foreclosure of mortgage-Intervention
Variance.

by state.
2. A variance between a complaint, giving

6. Where a certain creditor is seeking judg-
defendant's name as a “railroad” company, and the ment against a railroad company on certain bonds
summons and judgment, giving it as a "railway" and mortgages, an intervening petition by the
company, is immaterial. -St. Louis, I. M. & S. state, alleging that the bonds and mortgages are
Ry. Co. v. State, (Ark.) 17 8. W. 806.

void, and that the railroad company, by collu-

sion and neglect to defeud, is about to allow
Judgment-Award to wrong person. judgment to go against it by default; that such

3. Where a judgment is rendered for a pen- railroad company, in consideration of large
alty, error in awarding the same to persons not grants of land from the state, has agreed to
entitled to it does not prejudice defendant.-St. maintain low rates of transportation; and that,
Louis, I. M. & 8. Ry. Co. v. State, (Ark. 17 8. if said bonds and mortgages are foreclosed, the
W. 800.

rates will, of necessity, be increased, and im-
pose great burdens on commerce,-does not show

such a public interest as entitles the state to in
RAILROAD COMPANIES. tervene and prevent such judgment; especially

when neither the charter of the road nor any
Bee, also, Carriers.

subsequent law reveals any such contract as that
Construction of track in street, see Municipal alleged, and the charter expressly provides that
Corporations, 24, 25.

its rates of traffic shall be governed by state
Discriinination against, for injuries causing death, regulation. --State v. Farmers' Loan & Trust Co.,
see Constitutionul Law, 9.

(Tex. Sup.) 17 S. W. 60; Same v. Kennedy, Id. 67.
Land grants in aid of, see Public Lands, 1-4. Defective fences—Injury to crops.
Charter and franchises.

7. In an action against a railroad company
1. l'he construction and operation by a rail. for damages occasioned by cattle breaking through

defective fences erected by defendant, it is un-
road company of a part of its road proves an ac-
ceptance of its charter, where no particular mode necessary for the plaintiff to show diligence in
of acceptance is designated.-St. Joseph & I. R repairiog such defects, even though the owner
Co. v. Shambaugh, (Mo. Sup.) 17 S. W. 581.

trespassed upon is authorized by Rev. St. art. 4243,

to repair cattle-guards “at the expense of the
Registration of charter.

railroad company if it fails to do so,” for such
2. The statutes provide that & railroad com-

statute is permissive only, and the owner may
pany's charter shail first be registered in two bility for contributory negligence if he fails to

exercise the privilege at his option, without lia.
county where the company's principal office is; do so. Railroad Co. v. Young, 60 Tex. 201, fol.
that it shall then be transinitted to the secretary | lowed. --San Antonio & A. P. Ry. Co. v. Knoepili,
of state, who shali afix his certificate of regis.
tration and the great

seal of state, and that these (Tex. Sup.) 17 S. W. 1052.
shall be registered where the charter was orig. Accidents at crossings.
inaily registered; and that this shall complete the 8. At the crossing of a horse and a steam
company's corporate character. Held that, where railway, the view of the latter's track was ob-
a company was organized to run a railroad structed until within 15 feet of it. A horse car
through several counties, the county where its was driven slowly upon the crossing, without
charter has been so registered shall be deemed warning from a găteman stationed at the cross-
to bave been determined on as the location of the ing by the railroad company, until the horses
principal office, and holding a directors' and were on the crossing, when, as an engine ap.
stockholders' meeting in another county will not proached on a down grade, the gateman shouted
change the fact. --Anderson v. Middle & East to the driver of the horse-car to stop, and com.
Tennessee Cent. R. Co., (Tenn.) 17 S. W. 803. menced to lower tbe gates guarding the crossing,

but when they were half-way down, shouted tv Stoci-killing cases.
him to go on, and began raising the gates; others 14 Ap action cannot be maintained against a
shouted contradictory directions to him. The ranroad company for the death of a horse killed
driver stopped, or nearly so, but, before he had

on its track at a point where there was po fence,
stopped, plaintiff, a passenger in the horse-car,

but which was within 40 yards of defendants
in apprehension of a collision, jumped from the depot, and within switch limits, where it would
car, and thereby was injured. Held, that the be inconvenient both to the public and to defend-
question of the negligence of the railway com-

ants to fence the track; there being no evidence
pany, by its gatenjan, in allowing plaintiff to be of negligence on the part of defendants or their
placed in a position of apparent imminent peril, servants at the time the horse was killed.-Swan.
was properly submitted to the jury, though there

son v. Melton, Tex. App.) 17 S. W. 1088.
was no real danger of a collision. SHERWOOD,

15. Rev. St. Tex. art. 4245, providing that
C. J., and Brace, J., dissenting: -Kleiber v. railroads shall be liable to the owners for the
People's Ry. Co., (Mo. Sup.) 17 S. W. 946.

value of all stock killed or injured by the loco-
9. The fact that a railroad leaves freight-motives and cars of such railroads in running over
cars upon a side track in a thickly settled por- their respective railways, only applies to deaths
tion of a city, so as to obstruct the view of one

or injuries caused by actual collision of the loco-
approaching the crossing, is not per se negligence, motives or cars with the stock killed or injured,
but a finding by the trial court that it was neg.

and is inapplicable to the case of a mare which,
ligence, under certain circumstances, will be

on becoming frightened at the noise of a train,
affirmed when supported by the evidence.-Re-

runs into a fence, aud is killed. - Texas & P. Ry.
ceivers Houston & T. C. Ry. Co. v. Stewart, Co. v. Mitchell, (Tex. App.) 17 S. W. 1079.
(Tex. Sup.) 17 S. W. 33.

Running over dog.
Contributory negligence.

16. Defendant's train stopped at a side track
10. At the crossing of a horse and a steam to unload freight, and plaintiff's dog went une
railway, the view of the latter's track was ob der it. The conductor, having knowledge of such
structed until within 15 feet of it. A borse car the engineer to start, and the dog was run over.

fact, after the freight was uploaded, signaled
was driven slowly upon the crossing, without
warning from a gateman stationed at the crossing Held, that a verdict for plaintiff was nut sus.
by the railroad company, until the horses were on tained.,- Texas & P. R. Co. v. Scott, (Tex. App.)

17 S. W. 1116.
the crossing, when, as an engine approached on a

17. Dogs are not "stock," within the meaning
down grade, the gateman shouted to the driver of
the horse-car to stop, and commenced to lower to fence against them. - Texas & P. R. Co. v.

of kev. St. art. 4245, and railroads are not required
tne gates guarding the crossing, but when they Scott, (Tex. App.) 17 S. W. 1116.
were half-way down, shouted to him to go on,
and began raising the gates; others shouted con-

Fires.
tradictory directions to him. The driver stopped, 18. Act Ky. Jan. 30, 1874, requires railroad
or nearly so, but, before he had stopped, plaintiff, coiupanies to place on the chimneys of their loco.
& passenger in the horse-car, in apprehension of motives such screens as will prevent, as far as
a collision, jumped from the car, and thereby was possible, the escape of sparks of fire. Held that,
jajured. Held, that the apprehension of peril where property adjoining a railroad was burned
was reasonable, and such jumping was not con- by the sparks from a locomotive which was pro.
tributory negligence, though there was no real vided with the most approved form of spark-ar-
danger of a collision. --Kleiber v. People's Ry. resters, evidence that, on the occasion of the fire,
Co., (Mo. Sup.) 17 S. W, 946.

large showers of sparks were seen flying from
11. Plaintiff sued for injuries occasioned to the chimney of the locomotive upon adjoining
his wife through his horses taking fright on ap- property, and that a few days later an adjoining
proaching a crossing of defendant's railroad. It fence was set on fire by a large quantity of sparks
appeared that plaintiff, hearing the whistle of an froin the chimney, authorized the inference that
approaching engine, left his wagon in charge of the arrester was out of order, or improperly ad.
his wife, and ran ahead to turn back some cattle justed, and supported a finding that the railroad
from the crossing; that he then returned to his was negligent. -Louisville & N. R. Co. v. Tay.
team; and that as he reached the horses they lor, (Ky.) 17 S. W. 198.
took fright because of the continued whistling of 19. In an action against a railroad company
the engine. Held, that an instruction that, un- for damages caused by fire alleged to have been
less pla.utiff used ordinary care "in approach- started by the company's engines, the only evi-
ing” the crossing, be was guilty of contributory dence of the origin of the fire was that a short
negligence, was not objectionable as limiting the time before the fire was discovered 2 freight
question of contributory negligence to the nere trains passed the place, and that 3 or 4 hours
act of plaintiff in approaching the crossing, and after the fire grass and brush were found still
excluding his conduct in leaving his team. burning within 15 feet of the track. It was
Gulf, C. & S. F. Ry. Co. v. Box, (Tex. Sup.) 17 proved that the country was then very dry, and
8. W. 375.

that a furious wind was blowing at the time of

the fire. The defendant proved that the engines
Injuries to persons on track.

on said trains were provided with the best im.
12. In an action against & railroad company proved fire-arresters, which were in good condi-
for a death caused by its negligence, it appeared tion, and that at the place where the fire oo.
that deceased was employed by defendant in tak- curred the engines were propelled by gravity,
ing the numbers of cars on its side track in a without the use of steam. Held, that the evi.
town, and while in the discharge of his duty, and dence did not justify a verdict for the plaintiff.-
properly standing upon defendant's main track, Missouri Pac. Ry. Čo. . Cullers, (Tex. Sup.) 17
he was struck by a section of a train which was S. W. 19.
switching, and that there was no one on the cars 20. An instruction that if the jury believed
in a position to give warning of their approach. from the evidence that plaintiff had sustained
Held, that the company was willfully negligent. õamages through the negligence of defendant
Shelby's Case, 85 Ky: 229, 3 S. W. 157, and Con- in perioitting combustible matter to remain along
ley's Case, 12 's. W. 764, followed.-Louisville & the line of its road, then plaintiff could recover,
N. R. Co. v. Pott's Adm'r, (Ky.) 17 8. W. 185. is not open to the objection of assuming any fact,
Contributory negligence.

or of assuming, as a matter of law, that the per

mitting of combustible matter to remain along its
13. A person injured by an engine, while walk line is negligence.—Gulf, C. & S. F. Ry. Co. v.
ing through the yards of a railroad company, Kluge, (Tex. App.) 17 8.' W. 944.
cannot recover damages, where he was guilty of
contributory negligence, and the servants of the

Damages.
company exercised due diligence to avert the ac 21. In an action against a railroad company
cident. - Missouri Pac. Ry. Co. v. McKernan, for damages to grass, fences, and land from tire,
(Tex. Sup.) 17 S. W. 1057,

there is no error in allowing testimony as to the

value of the grass. -Gulf, C. & 8. F. Ry. Co. v. der twelve," and the other that defendant ravished
Kluge, (Tex. App.) 17 8. W. 944.

"one Margie E. Mooney,”-and every fact neces-
sary to constitute the crime is clearly charged,

though the counts are run together in one sen-
RAPE.

tence, and are without such punctuation as would

indicate the end of one and the beginning of the
What constitutes.

other, the indictment sufficiently charges each
1. Un a trial for rape, evidence showing offense under Rev. St. Mo. 1879, $1253, defining
merely that defendant got into the bed of the rape to be “either by carnally and unlawfully
complaining witness, and while there took inde knowing any female child under the age of twelva
cent liberties with her, is insuficient to justify years, or by forcibly ravishing any woman

of the
conviction, since penetration is not shown. --State age of twelve years. or upwards. •-State v. Dal-
v. Dalton, (Mo. Sup.) 17 S. W. 700.

ton, (Mo. Sup.) 17 S. W. 700.
2. The court charged that, to warrant a con-
viction for rape, the fact of penetration must be

Evidence.
established beyond a reasonable doubt, and ex.

10. On a trial for rape, the acts and declara.
plained what penetration meant, and further tions of the prosecutrix, after the commission of
said: “It is not necessary that the act of copula- the offense, are not admissible in evidence as
tion should have been complete, but penetration part of the res gestæ, but are only admissible as
only as far as above explained is necessary to be corroborative evidence.-Johnson y. State, 17 S.
proved, though such penetration need not have W. 252, 21 Tex. App. 368.
been to any particular depth.” Held a proper

11. In a prosecution for assault with intent to
construction of Pen. Code, art. 532.-Rodgers v. rape it was competent for the state to show the
State, (Tex. App.) 17 S. W. 1077.

appearance, condition, and statements of the

prosecutrix soon after the occurrence. -Lights v.
Female below age of consent. State, 17 S. W. 428, 21 Tex. App. 308.
3. On a trial for rape of a female under 10

12. On a prosecution for rape, the prosecutrix
years of age, the question of force or of assault testified that defendant had made improper pro-
is immaterial, and the court need not charge posals to her, and on two occasions attempted to
thereon, under Pen. Code, art. 528, which makes ravish her. Upon his second attempt she told
carnal knowledge of a female under 10 years of her husband, and the accused was arrested. She
age, with or without consent, use of force, refused to appear against him, and testified that,
threats, or fraud, per se rape.-Rodgers v. State, while he was going home after his discharge,
(Tex. App.) 17 S. W. 1077,

he met her in a field and ravished her. For the
Assiult with intent to rape.

purpose of showing how she came to be at such
4. On a trial for an assault with intent to place, she was permitted to testify in chief that,
rape a girl between 11 and 12 years old, the lat while the accused was in jail for the assault, his
ter testified that the accused took her into a

sister-in-law and two of his brothers told her
house, placed her upon a bed, removed her un-

that her husband was trying to get a divorce, and
derclothing, laid his person upon her, and re him, and that the two brothers offered her money

would put her in jail, and persuaded her to leave
mained in that position some time, without do-
ing auything further, and that she knew when to go to her uncle's in another counts There
he led her into the house what he wanted. It these conversations, and the character of the

was no evidence to connect the accused with
did not appear that she made any resistance or
men outside, both shortly appeared, and the girl THOMAS and BLACK, JJ., dissenting.–State v.
outery, and, being interrupted by a call from tivo prosecutrix had not then been attacked. Held,

ihat the conversations were not admissible.
showed no signs of distress or discomposure. Patrick, (Mo. Sup.) 17 S. W. 666.
She made no disclosure until some six weeks
afterwards. Held, that there was insufficient erly admitted, as tending to show an attempt to

13. Evidence of the prior assaults was prop-
evidence of force to justify a conviction of as-
sault with intent to rape. -Robertson v. State, commit the offense with which he was charged.
(Tex. App.) 17 S. W. 1008.

-State v. Patrick, (Mo. Sup.) 17 S. W. 666.
5. On a trial for an assault with intent to Sufficiency.
rape a girl between 11 and 12 years old, the lat. 14. On a trial for rape of a female under 10
ter testified that the accused took her into a years of age, the testimony of prosecutrix, who
house, placed her upon a bed, removed her un- was unusually intelligent for one of her age, was
derclothing, laid his person upon her, and re- most conclusive, and she was directly corrobo-
mained in that position some time, without doing rated by the surrounding circumstances, and by
anything further. Held, that the accused was the condition of her person. Held, that a ver-
entitled to have the jury instructed as to the law dict of conviction assessing the death penalty
of aggravated assault, which is defined to be should not be disturbed.-Rodgers v. State, (Tex.
violent and indecent familiarity by an adult App.) 17 S. W. 1077.
male with the person of a female without her 15. On a trial for rape the prosecutrix testi.
consent, and without the specific intent to rape. fied that defendant, a hired hand of her husband,
-Robertson v. State, (Tex. App.) 17 S. W. 1068. ravished her during the absence of her husband

6. In a prosecution for assault with intent to and children; that she resisted all she could,
rape it was proper to charge, after defining an as- told him he ought to be ashamed, called out, and
sault, that “where a male person assaults a woman tried to push him off; that she was in feeble
with intent to have carnal knowledge of her by health; that afterwards tbey ate dinner alone
force, without her consent and against her will. together; that his subsequent improper solicita-
such assault would be assault with intent to rape. tion caused her to go to a neighbor's house,
-Lights v. State, 17 S. W. 423, 21 Tex. App. 308. about 200 yards away, wbere she stayed till her
Indictment.

husband took her home at night. The neighbors

noticed nothing unusual in her appearance. One
7. The use of the word “her” sufficiently of them had been on the roof of the barn, 200
shows that the offense was charged to have been yards distant, at the time of the alleged crime,
committed on a femule.- Waruer v. State, (Ark.) but heard no outcries. The next day, at prose-
17 S. W. 6.

cutrix's request, her husband discharged defend-
8. An indictment alleging that defendant ant. On the second day after the alleged crime
" feloniously, forcibly, and against her will did prosecutrix informed her mother and husband of
carnally know one Jennie Jones” charges rape, The husband first filed a complaint against
and under it defendant cannot be convicted of defendant for assault with intent to rape. Held,
the crime of carnally knowing a female child that the evidence was insufficient to support a
under the age of puberty.--Warner v. State, verdict of guilty of rape.-Rhea v. State, (Tex.
(Ark.) 17 S. W. 6.

App.) 17 8. W. 931.
9. Where an indictment for rape contains 16. The evidence failed to show that degree
two counts,-one charging that defendant rav- of resistance requisite under Pen. Code, art. 539,
ished "one Margie E. Mooney, a female child un- which declares that the "force" necessarv to con-

it.

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